B-137451, JANUARY 7, 1959, 38 COMP. GEN. 481

B-137451: Jan 7, 1959

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HAVE A DRIVE SHAFT THROUGH WHICH POWER IS TRANSMITTED TO THE REAR AXLE. ARE POWERED BY 7 HORSEPOWER ENGINES ARE PROPERLY CLASSIFIED FOR FREIGHT CHARGE PURPOSES AS " FREIGHT VEHICLES SET UP" RATHER THAN AS "MOTORCYCLES. 1959: FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19. PAYMENT FOR THE SERVICES RENDERED WAS ON THE BASIS OF A RATE OF $3.50 PER 100 POUNDS AT A CARLOAD MINIMUM WEIGHT OF 16. 000 POUNDS WAS DISALLOWED. IT WAS DETERMINED THAT THE PROPER CHARGES FOR THE TRANSPORTATION FURNISHED WERE THOSE DERIVED FROM USE OF A CLASS 85 RATE OF $4.46 PER 100 POUNDS AT A CARLOAD MINIMUM WEIGHT OF 10. ON THAT BASIS YOU WERE FOUND TO BE OVERPAID $114. WHICH YOU WERE REQUESTED TO REFUND.

B-137451, JANUARY 7, 1959, 38 COMP. GEN. 481

TRANSPORTATION - RATES - CLASSIFICATION - MAILSTERS THREE-WHEELED " MAILSTER" PICK-UP VEHICLES WHICH, UNLIKE MOTORCYCLES, HAVE A DRIVE SHAFT THROUGH WHICH POWER IS TRANSMITTED TO THE REAR AXLE, A "RUB RAIL" WHICH FUNCTIONS AS A BUMPER, A "HARD-TOP" OPERATOR'S CAB, A 34.1 CUBIC FOOT CARGO COMPARTMENT, A FLOOR-BOARD LOCATED DIRECTLY UNDER THE OPERATOR'S LEGS, AND ARE POWERED BY 7 HORSEPOWER ENGINES ARE PROPERLY CLASSIFIED FOR FREIGHT CHARGE PURPOSES AS " FREIGHT VEHICLES SET UP" RATHER THAN AS "MOTORCYCLES, OR MOTOR SCOOTERS.'

TO THE CENTRAL OF GEORGIA RAILWAY COMPANY, JANUARY 7, 1959:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 19, 1958, FILE N- 68927-G-A, REQUESTING REVIEW OF THE SETTLEMENT NO. TK 642129, DATED JUNE 19, 1958, WHICH DISALLOWED YOUR CLAIM, PER BILL NO. N-68927-A-G-R 1667 FOR $28.80 ADDITIONAL FREIGHT CHARGES ON A SHIPMENT FROM LINCOLN, NEBRASKA, TO SAVANNAH, GEORGIA (STOP-OFF AT COLUMBUS, GEORGIA), DESCRIBED AS 8 "VEHICLES, FREIGHT SU ( 1/4 TON MAILSTER) (OVER 6 HORSEPOWER)" ON GOVERNMENT BILL OF LADING NO. PO 321760, DATED APRIL 5, 1957, WEIGHING 6,880 POUNDS.

PAYMENT FOR THE SERVICES RENDERED WAS ON THE BASIS OF A RATE OF $3.50 PER 100 POUNDS AT A CARLOAD MINIMUM WEIGHT OF 16,000 POUNDS. YOUR CLAIM FOR ADJUSTMENT OF THE CHARGES BY APPLICATION OF A RATE OF $3.50 AT A CARLOAD MINIMUM WEIGHT OF 16,000 POUNDS WAS DISALLOWED, AND IT WAS DETERMINED THAT THE PROPER CHARGES FOR THE TRANSPORTATION FURNISHED WERE THOSE DERIVED FROM USE OF A CLASS 85 RATE OF $4.46 PER 100 POUNDS AT A CARLOAD MINIMUM WEIGHT OF 10,000 POUNDS. ON THAT BASIS YOU WERE FOUND TO BE OVERPAID $114, WHICH YOU WERE REQUESTED TO REFUND.

THE BASIS OF RATE AND CARLOAD MINIMUM WEIGHT UPON WHICH IT WAS DETERMINED THAT YOU WERE OVERPAID IS THAT APPLICABLE TO FREIGHT AUTOMOBILES, SET UP, AND IN YOUR LETTER OF AUGUST 13, 1958, YOU CONTEND ESSENTIALLY THAT THE ARTICLES SHIPPED, KNOWN AS THREE-WHEELED " MAILSTER" PICKUP VEHICLES, MANUFACTURED BY THE CUSHMAN MOTOR WORKS, INC., LINCOLN, NEBRASKA, FOR USE BY THE POST OFFICE DEPARTMENT, WERE IMPROPERLY CLASSIFIED AS " FREIGHT VEHICLES SU.' IT IS YOUR VIEW THAT THE PROPER CLASSIFICATION RATING IS THAT NAMED IN ITEM 43815, UNIFORM FREIGHT CLASSIFICATION NO. 3, ON " MOTORCYCLES, OR MOTOR SCOOTERS, TWO WHEELED OR THREE-WHEELED: SU IN BOXES, CRATES OR PACKAGE 273.' WHILE THE WESTERN WEIGHING AND INSPECTION BUREAU CORRECTION SHEET ( DISTRICT 908) ISSUED APRIL 25, 1957, DENOMINATED THESE VEHICLES AS PROPERLY RATABLE AS " THREE WHEELED MOTORCYCLES" AND IS OFFERED IN SUPPORT OF YOUR POSITION, IT IS BELIEVED THAT SUCH DESCRIPTION IS CLEARLY NOT APPLICABLE TO THE ARTICLE SHIPPED.

THE " MAILSTER" MEASURES 101 1/4 INCHES IN LENGTH. IT IS 52 INCHES WIDE, 66 1/2 INCHES HIGH, WEIGHS 860 POUNDS UNCRATED, AND IS POWERED BY AN ENGINE RATED AT 7 HORSEPOWER. SIMILAR TO ANY CONVENTIONAL MOTOR VEHICLE, POWER IS TRANSMITTED TO THE REAR AXLE OF THE " MAILSTER" THROUGH A DRIVE SHAFT AND NOT THROUGH THE SPROCKET CHAIN ARRANGEMENT NORMALLY ASSOCIATED WITH MOTORCYCLES. THE DISPLACEMENT OF THE CARGO COMPARTMENT IS 34.1 CUBIC FEET AND A "RUB RAIL" WHICH FUNCTIONS AS A BUMPER IS ATTACHED EXTERNALLY TO THE CARGO COMPARTMENT. THE OPERATOR'S CAB IS A "HARD-TOP" STEEL ENCLOSURE IDENTICAL IN APPEARANCE WITH A CONVENTIONAL TRUCK CAB, AND A FLOOR-BOARD IS LOCATED DIRECTLY UNDER THE OPERATOR'S LEGS. ON THE OTHER HAND "A MOTORCYCLE WAS ORIGINALLY AND STILL IS A BICYCLE TO WHICH IS APPLIED A GASOLINE MOTOR.' MOTORCYCLE MANUFACTURER'S ASSOCIATION V. BALTIMORE AND OHIO RAILROAD, 26 I.C.C. 127 (1913), ECLIPSE MACHINE COMPANY V. HARLEY-DAVIDSON MOTOR COMPANY, 252 F. 805, CERTIORARI DENIED 248 U.S. 563 (1918). SEE, ALSO, 60 C.J.S. MOTOR VEHICLES, SECTION 6. A MOTORCYCLE HAS NO FRONT OR REAR PROTECTION IN THE FORM OF FENDERS OR BUMPERS. NO CAB PROTECTS THE OPERATOR FROM THE PERILS OF THE HIGHWAY, WHEREAS THE INSTANT VEHICLE HAS A HARD-TOP CAB. WE ARE ADVISED, MOREOVER, THAT THE UNIFORM CODE, REVISED IN 1956, PUBLISHED BY THE NATIONAL COMMITTEE ON UNIFORM TRAFFIC LAWS AND ORDINANCES, DEFINES A MOTOR-DRIVEN CYCLE AS EVERY MOTORCYCLE, INCLUDING EVERY MOTOR SCOOTER, WITH A MOTOR WHICH PRODUCES NOT IN EXCESS OF 5 HORSEPOWER.

FROM THE DESCRIPTION OF THE VEHICLE IN QUESTION THERE EXISTS NO BASIS FOR SUBSCRIBING TO THE VIEW THAT " CUSHMAN MAILSTERS" ARE PROPERLY RATABLE AS "MOTORCYCLES" WITHIN THE MEANING OF ITEM 43815 OF UNIFORM FREIGHT CLASSIFICATION NO. 3; CONSEQUENTLY, THE PROPOSITION ENUNCIATED IN GIDEON- ANDERSON LUMBER CO. V. ST. LOUIS SOUTHWESTERN RAILWAY CO., 88 F./2D) 232, 235 (1937), AND INVOKED IN YOUR LETTER HAS NO LEGITIMATE APPLICATION TO THE INSTANT SITUATION, SINCE THESE VEHICLES WERE NOT INCLUDED IN MORE THAN ONE DESIGNATION CONTAINED IN THE GOVERNING CLASSIFICATION. AT THE TIME OF THIS MOVEMENT THE ONLY RATING IN THE UNIFORM FREIGHT CLASSIFICATION NO. 3 THAT PRECISELY EMBRACES THIS VEHICLE IS THAT FOR FREIGHT AUTOMOBILES, AS NAMED IN ITEM 43780.

THE SETTLEMENT DISALLOWING YOUR SUPPLEMENTAL BILL (N-68927-A-G-R 1667) IS SUSTAINED, AND YOU ARE REQUESTED TO REFUND THE $114 FOUND OVERPAID; OTHERWISE, ADJUSTMENT WILL BE EFFECTED BY DEDUCTION FROM AMOUNTS OTHERWISE DUE.